Citation Nr: 0202360
Decision Date: 03/13/02 Archive Date: 03/25/02
DOCKET NO. 98-08 943A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased rate of pension to a surviving
spouse by reason of the need for regular aid and attendance
and/or for housebound status.
REPRESENTATION
Appellant represented by: Mississippi State Veterans
Affairs Commission
WITNESS AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
A. Hinton, Counsel
INTRODUCTION
The veteran served on active duty from December 1952 to
November 1956. The appellant is the widow of the veteran.
This matter arises before the Board of Veterans' Appeals
(Board) on appeal from an April 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi, that denied the above claim.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the appellant's claim.
2. The appellant is not blind or nearly blind, is not a
patient in a nursing home, is not currently unable to dress
or feed herself, to attend to the wants of nature, or to
protect herself from the hazards incident to her daily
environment. Her disabilities do not render her bedridden.
3. The appellant's disabilities, when considered in
combination with each other, do not result in her inability
to care for most of her daily personal needs without regular
assistance of another person, nor do they result in an
inability to protect herself from the hazards and dangers of
her daily environment; nor do they result in her confinement
to her home or the immediate premises.
CONCLUSION OF LAW
The criteria for a special monthly allowance by reason of the
appellant being in need of the regular aid and attendance of
another person and/or by reason of the appellant being
housebound due to disabilities have not been met. 38
U.S.C.A. §§ 1502, 1541 (West 1991 & Supp. 2001); 38 C.F.R. §§
3.351, 3.352 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that during the pendency of this
appeal, there was a significant change in the law.
Specifically, on November 9, 2000, the President signed into
law the Veterans Claims Assistance Act (VCAA) of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), which, among other
things, redefined the obligations of VA with respect to the
duty to assist and included an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits. The law also
eliminated the concept of a well-grounded claim and is
applicable to all claims filed on or after the date of
enactment or those filed before the date of enactment but not
yet final as of that date.
In this case, the Board finds that the RO has met its duty to
assist the appellant in the development of her claim under
the VCAA. The Board finds that the RO's development/notice
letters, rating decision and statement of the case furnished
to the appellant and her representative in connection with
this appeal provided sufficient notice of the kind of
information she would need to substantiate her claim for the
benefit sought. Furthermore, there is no indication that the
RO has not provided adequate assistance in seeking evidence
identified as relevant to the issue on appeal. Most
recently, in a March 2001 notice letter, the RO requested
further evidentiary records, information and authorization to
seek any further records identified by the appellant as
relevant. Further, the Board notes that the appellant's
private treating physician has reported on the appellant's
health and specifically addressed the issue of her need for
aid and attendance and/or for housebound status. Therefore,
the Board finds that the requirements of the VCAA have been
satisfied.
Under the relevant regulations, where a surviving spouse who
is entitled to death pension is in need of the regular aid
and attendance of another person, an increased rate of
pension is payable. 38 U.S.C.A. § 1541(d) (West 1991 & Supp.
2001). For pension purposes, a person shall be considered to
be in need of regular aid and assistance if such person is
(1) a patient in a nursing home on account of mental or
physical incapacity, or (2) helpless or blind, or so near
helpless or blind as to need the regular aid and attendance
of another person. 38 U.S.C.A. § 1502(b) (West 1991 & Supp.
2001); 38 C.F.R. § 3.351 (2001).
Determinations as to need for aid and attendance must be
based on actual requirements of personal assistance from
others. In making such determinations, consideration is
given to such conditions as: inability of the appellant to
dress or undress herself or to keep herself ordinarily clean
and presentable; frequent need of adjustment of any special
prosthetic or orthopedic appliances which by reason of the
particular disability cannot be done without aid; inability
of the appellant to feed herself through loss of coordination
of upper extremities or through extreme weakness; inability
to attend to the wants of nature; or incapacity, physical or
mental, which requires care or assistance on a regular basis
to protect the claimant from hazards or dangers incident to
her daily environment. "Bedridden" will be a proper basis
for the determination and is defined as that condition which,
through its essential character, actually requires that the
appellant remain in bed.
A favorable rating does not require finding that all of the
above listed disabling conditions exist. The particular
personal functions which the appellant is unable to perform
should be considered in connection with her condition as a
whole. It is only necessary that the evidence establish that
the appellant is so helpless as to need regular aid and
attendance, not that there be a constant need. 38 C.F.R. §
3.352(a) (2001).
In addition, a surviving spouse may be entitled to housebound
status if she is permanently housebound by reason of
disability. The "permanent housebound" requirement is met
when the surviving spouse is substantially confined to her
home or immediate premises by reason of disability or
disabilities and it is reasonably certain these will remain
throughout the surviving spouse's lifetime. 38 C.F.R. §
3.351(e) (2001).
In this case, the appellant contends that her overall health
condition warrants entitlement to the benefit sought as she
has several medical conditions and thereby requires
assistance of another person to attend to the daily functions
in life. The recent record in connection with this claim
includes private medical records, the transcript of a March
1999 hearing at the RO, and statements from the appellant and
her daughters.
In a private statement dated in March 1998, the appellant's
treating physician stated that the appellant had multiple
medical problems including hypothyroidism, bilateral carpal
tunnel syndrome, depression, chronic low back pain and anal
sphincter dysfunction. The physician stated that the
appellant may indeed need help with bathroom activities, and
that there should be no restrictions on the appellant leaving
home.
A March 1998 statement of attending physician form
specifically addressed factors associated with the issue of
the appellant's need for aid and attendance and/or for
housebound status. That form was provided by the appellant's
treating physician, and listed the appellant's current
symptoms and complaints as (1) anal sphincter dysfunction;
(2) depression; (3) low back pain; and (4) pain/numbness in
the hands. The form listed as diagnoses of disabilities, (1)
anal sphincter dysfunction of unknown or questionable
severity; (2) carpal tunnel [syndrome] of moderate severity;
(3) hypothyroidism of moderate severity; (4) depression of
moderate severity; and (5) low back pain of moderate
severity. The form indicated that the appellant leaves home
on an as needed basis. The form indicated that the appellant
used a cane as an aid required for locomotion or movement.
The form contained the following findings. The appellant was
not bedridden or blind. She had a loss of anal sphincter
control but no loss of bladder sphincter control. The
appellant could walk and get around without assistance and
could dress and undress without assistance. She could use
the bath/toilet without assistance and could wash and keep
herself clean and presentable. She could feed herself
without assistance and protect herself from the hazards of
life. The form noted that the appellant was not a patient in
a nursing home.
Private medical records show that the appellant was treated
in May 1998 for a gastrointestinal hemorrhage. At that time
she was hospitalized for several days and underwent
colonoscopy and other diagnostic studies. The operative
report contains conclusions of adhesions, polyps at 10 cm.
and colitis involving the splenic flexure area with endoscopy
at least consistent with ischemic colitis. The hospital
report contains a number of diagnoses at discharge.
In private statements dated in December 1998 and March 1999
from William D. Bridges, M.D., he indicated that the
appellant had been under his care since 1985 and was taking
medications and being treated for depression and anxiety.
The recent pertinent medical records include various private
medical records from 1997 through 1999, reflecting treatment
for different medical conditions and disorders.
A February 2000 statement of attending physician form
specifically addressed factors associated with the issue of
the appellant's need for aid and attendance and/or for
housebound status. That form listed diagnoses of
disabilities and their respective severity: (1) fibromyalgia,
severe; (2) osteoarthritis, moderate; (3) peripheral
neuropathy, moderate; (4) lumbar disc disease, severe; and
(5) hypothyroidism, mild. The form indicated that it was
hard for the appellant to get out due to pain, fatigue and
other symptoms; she could get out but not without severe pain
and fatigue. The form indicated that the appellant did not
use a cane or other aids for locomotion or movement. The
form contained the following findings. The appellant was not
bedridden or blind. She had no loss of anal sphincter
control or bladder sphincter control. The appellant could
walk and get around without assistance and could dress and
undress without assistance. She could use the bath/toilet
without assistance and could wash and keep herself clean and
presentable. She could feed herself without assistance and
protect herself from the hazards of life. The form noted
that the appellant was not a patient in a nursing home.
During a March 1999 hearing at the RO, the appellant and her
daughter testified regarding the appellant's disabilities and
their impact on her ability to take care of herself. That
testimony indicated that the appellant's degenerative
arthritis and psychiatric symptomatology were significant
factors, and that her children helped her with shopping and
other chores. The appellant testified that she lived alone
and could feed and bath herself.
After a careful review of the evidence of record, it is the
decision of the Board that the appellant does not meet any of
the foregoing criteria that would provide a basis to entitle
the appellant special monthly pension in the form of aid and
attendance benefits or housebound benefits. The Board finds
that the appellant is not entitled to a special monthly
allowance based on the need for regular aid and attendance of
another person. The medical evidence does not indicate that
she meets the criteria outlined in 38 C.F.R. § 3.351.
Specifically, there is no indication that she is mentally or
physically incapacitated to the extent that she needs regular
aid and attendance. Although in her March 1998 statement the
physician indicated that the appellant may need help with
bathroom activities, in the March 1998 statement of attending
physician form, that physician confirmed that the appellant
could use the bath/toilet without assistance and could wash
and keep herself clean and presentable. There is no evidence
that the appellant is unable to feed herself, bathe herself,
and attend to the needs of nature herself. While she was
noted to be using a cane in March 1998, she was not in
February 2000, and she is able to walk and get around without
assistance and can dress and undress without assistance.
Further, the evidence does not show that she is unable to
take care of daily self-care activities, or needs regular
assistance to protect her from hazards or dangers incident to
her daily environment due to disability. Nor does the
evidence otherwise show that she is in need of regular aid
and attendance as envisioned by the regulation. Although in
recent correspondence received in January 2001 her daughter
indicated that the appellant lived with her and had someone
to provide assistance with tasks involving physical labor,
the medical evidence indicates that previously the appellant
was living at home alone. Furthermore, the record does not
show that the appellant is a patient in a nursing home or is
helpless or blind, or so nearly helpless or blind as to
require the regular attendance of another person.
Accordingly, the Board concludes that the appellant is not
entitled to special monthly allowance based on the need for
regular aid and attendance.
In addition, entitlement to the housebound benefit requires
that the surviving spouse be "permanently housebound,"
defined as being substantially confined to her home or
immediate premises. In this case, there is no evidence that
the appellant is limited in her ability to leave her dwelling
or immediate premises due to her disabilities. While she has
maintained that she is unable to drive herself because her
medication causes blurred vision, there is no medical
evidence to support a claim that she is substantially
confined to her home or immediate premises by reason of
disability. The medical evidence indicates that there should
be no restrictions on the appellant leaving home, and she can
apparently ambulate without difficulty. Though it was noted
in February 2000 that it was painful for her to get out, she
could get out. Moreover, none of the medical records reflect
that the appellant has had any difficulty traveling to
physician visits, and she has indicated in testimony that she
was able to go to the grocery store to shop. The evidence
does not show that she is substantially confined to her home
or immediate premises due to disability. For these reasons,
entitlement to housebound status is not in order.
As the Board has found a preponderance of the relevant
evidence to be against this claim, the evidence in this case
is not so evenly balanced so as to allow application of the
benefit of the doubt rule. 38 C.F.R. § 3.102 (2001).
ORDER
An increased rate of pension to a surviving spouse by reason
of the need for regular aid and attendance and/or for
housebound status is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.